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is ordered, he shall nevertheless, make a return in the same manner, and with the like effect, as if he were still in office.

$362. (Am'd 1857.) Further return.

If the return be defective, the appellate court may direct a further or amended return as often as may be necessary, and may compel a compliance with its order, by attachment. And the court shall always be deemed open for these purposes.

a. Where an order for an amended return from a justice's court is granted at the first term of the county court after the filing of the original, it is improper to place the appeal upon the calendar of the county court until the return of the justice's court has been perfected by the filing of the amended return. Where the county court, before the filing of the amended return, dismisses the appeal under § 364 of the code, it acts ministerially, and the dismissal is a nullity, and a mandamus may issue in like manner as if the appeal had not been dismissed, requiring the county court to proceed to judgment (The People v. Clinton County Judge, 13 How. 277).

b. Exceptions and rulings of the court below, not appearing in the return, cannot be brought to the notice of the appellate court, except by compelling a further or amended return (Hyland v. Sherman, 2 E. D. Smith, 235).

c. Where the return of a justice on appeal failed to show in what manner he had disposed of a material question touching the admissibility of evidence, the case was ordered to stand over for a further return, upon the coming in of which a final decision was rendered (Matthews v. Fiestel, 2 E. D. Smith, 91).

See note to § 361, and rule 53.

§ 363. Justice dead, insane, or absent.

If a justice of the peace, whose judgment is appealed from, shall die, become insane, or remove from the State, the appellate court may examine witnesses on oath, to the facts and circumstances of the trial or judgment, and determine the appeal, as if the facts had been returned by the justice. If he shall have removed to another county within the State, the appellate court may compel him to make the return, as if he were still within the the county where the judgment was rendered.

d. A return to a certiorari made by a judge who was out of office before the service of the certiorari upon him,-held valid (Conover v. Devlin, 15 How. 470; The People v. Conover, 6 Abb. 228; Harris v. Whitney, 6 How. 175).

Noticing appeal for hearing. Dis

New trial.

§ 364. (Am'd 1852, 1863.) missing appeal if not brought on.

If a return be made, and the appeal is from a judgment where a new trial may not be had as provided by this chapter, it may be brought to a hearing at a general term of the appellate court, upon notice by either party of not less than eight days. It shall

be placed upon the calendar, and continues thereon without further notice until finally disposed of. But if neither party bring it to a hearing before the end of the second term, the court shall dismiss the appeal, unless it continue the same by special order for cause shown. If the appeal is from a judgment where a new trial may be had, it may be brought to a hearing or trial at any term of the county court at which a petit jury shall be summoned to attend, upon the same notice as provided for actions in the supreme court; at least eight days before the court, the party desiring to bring on the appeal shall serve a note of issue on the clerk, and the clerk shall thereupon enter the cause on the calendar according to the date of the return. And the provisions of this chapter for a new trial shall apply as well to appeals heretofore taken and now pending, as those hereafter to be brought.

a. Proceeding on hearing of appeal.—On appeal from a justice's court, under sections 353 and 366, the appellate court must hear at the same time and pass upon all the questions, both those of error in law and of error in fact, and of a motion for a new trial (Cook v. Swift, 10 Abb. 212; 18 How. 454). Where the county court refused to hear argument upon the whole case, at the same time requiring the appellant to argue his motion for a new trial before proceeding with the case, or lose the benefit of it, the supreme court reversed the judgment, and left the cause pending upon the appeal, in the county court, to be proceeded with anew (id.)

b. The judgment appealed from will be reversed by default, if the respondent does not appear to argue the appeal (Whitney v. Bayard, 2 Sand. 634).

c. Where notice of hearing has been given by the appellant, the respondent may move for an affirmance of the judgment, ex parte, although he has given no notice of argument (Constant v. Ward, 1 Cal. R. 333; Townshend v. Keenan, per Hilton, J., 16 March, 1859).

§ 365. (Am'd 1849, 1869.) Papers on appeal.

The appeal shall be heard on the original papers, or certified copy, and no copies thereof need be furnished for the use of the


§ 366. (Am'd 1849, 1851, 1862, 1865.) Hearing on appeal. Judgment on appeal. Error in fact. Judgment by default. New


Upon the hearing of the appeal, the appellate court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits.

In giving judgment, the court may affirm or reverse the judgment of the court below, in whole or in part, and as to any or all the parties, and for errors of law or fact.

If the appeal is founded on an error in fact in the proceedings,

not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the alleged error in fact on affidavits, and may in its discretion inquire into and determine the same upon examination of the witnesses.

If the defendant failed to appear before the justice, and it is shown by the affidavits served, by the appellant or otherwise, that manifest injustice has been done, and he satisfactorily excuses his default, the court may, in its discretion, set aside or suspend judgment, and order a new trial before the same or any other justice in the same county, at such time and place, and on such terms as the court may deem proper.

Where a new trial shall be ordered before a justice, the parties must appear before him according to the order of the court, and the same proceedings must thereupon be had in the action as on the return of a summons personally served. If the appeal shall be from a judgment in which a new trial may be had as in this chapter provided, the court shall proceed to the hearing of the cause, if the issue joined before the justice was an issue of law, or to the trial thereof by jury, if such issue was upon a question of


1. If the issue joined before the justice was an issue of law, the court shall render judgment thereon according to the law of the case; and if such judgment be against the pleadings of either party, an amendment of such pleading may be allowed on the same terms and in like case as pleadings in actions in the supreme court, and the court may thereupon require the opposite party to answer such amended pleading, or join issue thereon, as the case may require, summarily.

2. If, upon an appeal in an issue of law, the court should adjudge the pleading complained of to be valid, it shall, in like manner, require the opposite party, summarily to answer such pleading, or join issue thereon, as the case may require.

3. Upon an issue of fact being so joined, the court shall proceed to hear the same tried by a jury in the same manner as issues joined in the supreme court.

4. Every issue of fact so joined, or brought upon an appeal, shall be tried in the same manner as in actions commenced in the supreme court.

5. The court shall have the same power over its own determinations, and the verdict of the jury, and shall render judgment thereon in the same manner as the supreme court, in actions pend

ing therein; and may allow either party to amend his pleadings upon such terms as shall be just, in cases where a new trial may be had, as in this chapter provided; and in any such appeal on which a new trial is to be had, either party may, at any time before trial, serve upon the opposite party an offer, in writing, to allow judgment to be taken against him for the sum or property, or to the effect in such offer specified, and with or without costs, as said offer shall specify, If the party receiving such offer accept the same, and give notice thereof in writing within ten days, he may file the return and offer, with an affidavit of service of notice of acceptance thereof, and the clerk shall thereupon enter judgment according to said offer. And if the party making such offer shall have given an undertaking upon the appeal, the parties executing such undertaking shall be liable thereon for the payment of the judgment entered by virtue of said offer. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence. And if the party to whom such offer is made fail to obtain a judgment more favorable to him than that specified in said offer, then he shall not recover costs, but must pay the other party's costs from the date of the service of the offer.

6. Either party may move for a new trial, in said court, on a case or exception, or otherwise, and such motion may be made before or after judgment has been entered; and the provisions of this act in relation to the proceedings on receiving the verdict of a jury, exceptions to the decisions of the court, making and settling case and exceptions, motions for new trials, and making up the judgment-roll in the supreme court, are hereby made applicable to all appeals brought up for trial as in this chapter provided.

a. Exception not necessary. In a justice's court no exception is necessary to secure the right to appeal, objection is sufficient (Meech v. Brown, 4 Abb. 19). And where evidence offered on a trial before a justice is objected to and excluded, and neither the grounds of the objection, nor the object of the proof is stated, and the court on appeal can see that a good objection might have been taken, it will presume that the proper objection was taken and the decision below made upon that ground (Bellows v. Sackett, 15 Barb, 96).

b. What questions are reviewable on appeal.—The appellate court will review only the defects stated in the notice of appeal (see ante, in note to § 354), and is restricted to the issues framed in the court below (Ross v. Hamilton, 3 Barb. 609); and, as a general rule, the court, upon appeals from inferior courts, disregards all objections not taken at the trial (Desmond v. Rice, 1 Hilton, 531; Willard v. Bridge, 4 Barb. 361; Austin v. Burns, 16 id. 643; Westbrook v. Douglass, 21 id. 602; Rice v. Hollenbeck, 19 id. 664; Smith v. Hill, 22 id. 656). But where the plaintiff, without giving the bond re

quired by the revised statutes, recovered judgment on two negotiable notes which had been lost, and no objection to his recovery on that ground was made at the trial,-held, nevertheless, that the giving a bond was a prerequisite to any recovery, and the return not showing affirmatively that a bond was given, the judgment was reversed (id.) And the common pleas will review the decision of a justice of a district court, denying a jury trial, although no exception to the decision was taken (Meech v. Brown, 1 Hilton, 257), and the appellant may show the court below had not jurisdiction, although the point was not raised below (Willins v. Wheeler, 28 Barb. 669). But an appellant cannot object for the first time, on appeal, that a question put to a witness was leading (Pollock v. Hoag, 4 E. D. Smith, 473; Pearson v. Fiske, 7 Abb. 419); or, that when the alleged liability arose, she was a feme covert (Castree v. Gavelle, 4 E. D. Smith, 425); or, that there was no formal proof of the issuing of letters of administration to the plaintiff suing as an administrator (Donohue v. Henry, 4 E. D. Smith, 162); that certain evidence was incompetent or inadmissible (Rouillier v. Wernicki, 3 id. 310; Ranney v. Gwynne, 3 id. 59); that there was a misjoinder of parties plaintiff (Tibbitts v. Percy, 24 Barb. 39); or a nonjoinder of defendants (Arogardo v. Bull, 4 E. D. Smith, 384); or, that after the jury was sworn, the justice permitted some of them to withdraw and others to be substituted (Cook v. Ritter, 4 E. D. Smith, 253); or, to the competency of a witness (Fenn v. Timpson, id. 276). And generally, a party cannot, on appeal, insist on an objection which might have been and was not taken in the court below (Duffy v. Thompson, 4 E. D. Smith, 178), which, if taken at the trial, might have been obviated by the respondent (Hunt v. Hoboken Land Co. 1 Hilton, 161; Lee v. Schmidt, id. 537). Thus, the appellant cannot insist for the first time, on an appeal from judgment, that a question to a witness was improper because he was not shown to be an expert (Hunt v. Hoboken Land Co. 1 Hilton, 161). Nor, in an action by several plaintiffs as partners, for goods sold and delivered, can the defendant on the appeal avail himself of the objection that the plaintiffs omitted to prove their partnership (Whitlock v. Bueno, 1 Hilton, 72). On the appeal the appellant cannot object to the form of the complaint (Neff v. Clute, 12 Barb. 466). The appellate court may presume a party has waived any defense, he may waive, where the point is not taken either by the pleadings or at the trial (Gastree v. Gavelle, 4 E. D. Smith, 425). And where such point is not specified in the notice of appeal (Duffy v. Thompson, id. 178). The appellant may waive the defense of coverture (Castree v. Gavelle, 4 E. D. Smith, 425), or that plaintiff suing as administrator has not proved any grant of letters to him (Donohue v. Henry, 4 E. D. Smith, 162); or that plaintiff suing as assignee has not proved the assignment to him (Austin v. Burns, 16 Barb. 643); that an instrument was admitted without calling the attesting witness (Ranney v. Guinn, 3 E. D. Smith, 59); and an appellant, by not raising the question by his pleading, waives an objection that the cause of action in the summons and complaint vary from each other (Bandman v. Gamble, 4 E. D. Smith, 463; Andrews v. Thorp, 1 id. 615; Miln v. Russell, 3 id. 303, and note; Gossling v. Broach, 1 Hilton, 49; Brown v. Jones, 3 Abb. 80; see, however, Sweet V. Tuttle, 14 N. Y. 465); that defendant was improperly sued by a short summons (Ingersoll v. Gillies, 3 E. D. Smith, 119), or by warrant (Dempsey v. Paige, 4 id. 218); that there is a variance between the summons served and that returned (Avogardo v. Bull, id. 384); or a nonjoinder of defendants (id.), or a misjoinder of plaintiffs (id.; Tibbitts v. Percy, 24 Barb. 39), or a defect in the process (Aldrich v. Ketcham, 3 E. D. Smith, 577).

a. The court will not review, on appeal, the propriety of an amendment granted on the appellant's motion (Örsser v. Grossman, 4 E. D. Smith, 443). A decision on the relative credibility of two opposing witnesses (McLaughlin v. Barnard, 2 E. D. Smith, 372; Heim v. Wolf, 1 id. 72). Or on the competency of a witness to testify as an expert (Wiggins v. Wallace, 19 Barb. 338). Or a question on the form of the complaint in the court below (Neff v. Clute, 12 Barb. 466; see, Cushinham v. Phillips, 1 E. D. Smith, 416). Or a decision

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